Can a combined local board of health (Wetzel-Tyler) buy land and build a new health-department facility, or does the county commission have to own the property?
Plain-English summary
Wetzel and Tyler counties share a single local health department, run by a combined board of health. The department's leased space stopped working for them, and the board wants to buy land and build something new. The Tyler County prosecutor asked: who can actually own the property? Just the board of health? One county commission? Both county commissions together?
The AG's answer cleans this up in three steps:
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The combined local board of health can own real property and build a facility on its own. The board's statutory duty under W. Va. Code § 16-2-11(a)(2) to "provide equipment and facilities for the local health department" carries with it the implied authority to acquire the land that makes "providing facilities" possible.
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Because the board can do this itself, the second question (must a county commission own the property?) is moot. The county commissions are not required.
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If the commissions still want to be the owners, they can. Each county commission has broad statutory power to buy real estate (W. Va. Code §§ 7-3-2, 7-3-5, 7-3-7), and Code § 7-1-3i and § 8-23-3 expressly let two commissions exercise any of their powers jointly. Joint ownership is fine, and the property can sit in either county. They will need an intergovernmental agreement that follows the requirements in § 8-23-3, including specifying the agreement's purpose, duration, and structure.
This opinion is a good model of how West Virginia treats implied powers: when the legislature gives a body a clear duty (provide facilities), the practical authority needed to carry out that duty (buy land) follows.
What this means for you
If you sit on a combined or single-county local board of health
You have more authority than you may have assumed. The opinion confirms that the board itself can be the buyer and owner of real property used for the health department. You do not need to route a real-estate transaction through your county commission unless you want to. That can simplify deals where the commission is on a different timeline, or where you want the board to control the asset directly.
Practically: before you sign a purchase contract, document the board's vote and the source of funds. Section 16-2-11(b)(4) is the explicit authorization to use "money or property" the board has received for "establishment or construction of public health facilities." If your funding is grant-based, county-appropriated, or a mix, paper-trail the source and confirm any donor or grantor restrictions before closing.
If you serve on the Wetzel County or Tyler County Commission (or any county commission considering buying real estate for a board of health)
You also retain authority to buy land, individually or jointly with another commission, even though the board could do it. The opinion is permissive on every reasonable variation: you can own alone, you can own together, the property can sit in either county. What you must do, if you go the joint route:
- Adopt the deal "by ordinance, resolution or otherwise" pursuant to your governing-body procedures. § 8-23-3.
- Put the agreement in writing with the elements required by § 8-23-3 and § 8-23-4: purpose, duration, the new entity's composition (if any), method of disposition of property at termination, and so on.
- If you create a new legal entity (like a joint authority), make sure the entity itself is properly chartered.
If you are a county prosecutor advising on a similar deal
Watch for two issues the opinion does not directly answer. First, where money for the purchase comes from: § 16-2-11(b)(4) authorizes use of property and money the board has, but the source of the money may have its own restrictions (grant terms, special levies, federal funds). Second, what happens to the property if the combined board dissolves or one county withdraws. § 8-23-3 requires the agreement to address that, and the absence of language is a known headache when relationships change.
Watch also for the limit the opinion notes (in passing) on real estate held purely for resale at a profit. Keatley v. Summers County Ct. tells county commissions they cannot buy more land "simply with a view of making a profit by resale of a portion thereof." Acquisition for an actual public health purpose is fine; flipping land is not.
Common questions
Q: Why does the local board of health have any real-property power at all?
A: The board's statutory duty in § 16-2-11(a)(2) is to "provide equipment and facilities for the local health department." The opinion follows two lines of authority: (a) other states define "provide" and "construct" to include "acquisition of property" (Dancy v. Davidson; Cal. Govt. Code § 54700.4; Threlkeld), and (b) under State ex rel. Post v. Bd. of Educ. of Clarksburg, the implied power to do whatever is necessary to execute an express power is a long-running rule of West Virginia law. You cannot construct a building without owning or leasing the underlying land.
Q: Can the combined board sell the building later?
A: The opinion does not address resale. The implied-powers reasoning would extend to disposition of property no longer needed (since boards have to manage their facilities), but commissions and boards considering this should look at any restrictions tied to how the land was acquired (grant conditions, eminent domain limitations, etc.) and document the public-purpose justification for any sale.
Q: Can either county commission buy the property alone, with the other county not involved?
A: Yes. § 7-3-2, § 7-3-5, and § 7-3-7 give individual county commissions broad authority to buy property for public purposes. The opinion specifically says "ownership by a county commission is not required" but that, if a commission wants to own, it has the power.
Q: What if Wetzel County and Tyler County eventually want to split the joint health department? Who keeps the property?
A: That has to be in the intergovernmental agreement. § 8-23-3 expects the agreement to specify "the manner of acquiring, holding and disposing of real and personal property used in" a joint undertaking. The opinion does not write that for you, but it flags this as a required element. Get it in writing up front.
Q: Is the joint-purchase requirement a "buy the land for cash" rule, or can the commissions take loans, lease-purchase, or use bonds?
A: § 7-3-5 specifically contemplates "a contract, or lease, or with any bank or financial institution, or with any individual or persons for the erection, construction, equipment, leasing and renting of ... public buildings." So lease-purchase and financing arrangements are within the express grant. The mode of acquisition can fit normal county procurement.
Q: Does this opinion change anything about the local board of health's authority over public health programs (e.g., licensing, inspections)?
A: No. The opinion is narrowly about real-property acquisition and joint county action. The board's substantive public-health authorities under Chapter 16 are not analyzed.
Background and statutory framework
West Virginia organizes local public health through Chapter 16, Article 2. § 16-2-2 defines a "local board of health" to include "a board of health serving one or more counties or one or more municipalities or a combination thereof." That captures the Wetzel-Tyler combined board.
The board's powers and duties are in § 16-2-11. Two pieces matter for property:
- § 16-2-11(a)(2): the board "shall ... [p]rovide equipment and facilities for the local health department." The "shall" makes this mandatory, not optional. State v. Allen.
- § 16-2-11(b)(4): the board can use "money or property" it has for "establishment or construction of public health facilities."
The county commission powers piece sits in Chapter 7, Article 3:
- § 7-3-2: commissions may buy as much land as is "requisite or desirable for county purposes."
- § 7-3-5: commissions may contract for the construction or leasing of public buildings, with banks, individuals, or other parties.
- § 7-3-7: commissions may "acquire real estate for, construct, equip, furnish and maintain" public buildings.
- § 7-3-12: these powers are to be "liberally construed."
Joint action sits in two places:
- § 7-1-3i: commissions may join with other counties in carrying out lawful purposes.
- § 8-23-3: any public agency that could act alone may act jointly, including in property acquisition. Sets the requirements for an intergovernmental agreement (purpose, duration, composition).
The implied-powers backbone of the analysis comes from State ex rel. Post v. Bd. of Educ. of Clarksburg (1912), which is over 100 years old: "every power necessary to the execution of an express power is plainly implied." The duty to provide a facility cannot be carried out without a place to put the facility. The corollary, from State ex rel. Cnty. Ct. v. Arthur, is that if the legislature tasks a body with a function, the body has authority to do whatever is "reasonably necessary to perform that function."
The "symbiosis" framing comes from State ex rel. Warner v. Jefferson Cnty. Comm'n: county commissions and the public-health bodies they create have intertwined duties. § 16-2-3 says commissions shall create boards of health; § 16-2-14 says they shall fund the boards. That financial tether makes commissions' implied power to buy property for the boards almost inevitable, even before reaching the express grants in Chapter 7.
The geographic question (can the property be in either county?) gets the briefest treatment. The opinion notes no statute limits county commissions' real-estate ownership to property within their own county when they exercise powers jointly with another county. Read with § 7-1-3i and § 8-23-3, the answer is yes: the commissions can place the building wherever the joint undertaking decides.
Citations
- W. Va. Code §§ 5-3-2; 7-1-3i; 7-3-2; 7-3-5; 7-3-7; 7-3-12; 8-23-3; 8-23-4
- W. Va. Code §§ 16-2-1; 16-2-2; 16-2-3; 16-2-11(a)(2), (b)(4); 16-2-14
- Bane v. Bd. of Educ. of Monongalia Cnty., 178 W. Va. 749, 364 S.E.2d 540 (1987)
- State v. Allen, 208 W. Va. 144, 539 S.E.2d 87 (1999)
- Dancy v. Davidson, 183 S.W.2d 195 (Tex. Civ. App. 1944)
- United States v. Threlkeld, 72 F.2d 464 (10th Cir. 1934)
- State ex rel. Post v. Bd. of Educ. of Clarksburg Sch. Dist., 71 W. Va. 52, 76 S.E. 127 (1912)
- Herald v. Bd. of Educ., 65 W. Va. 765, 65 S.E. 102 (1909)
- State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
- Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 720 S.E.2d 587 (2011)
- Keatley v. Summers Cnty. Ct., 70 W. Va. 267, 73 S.E. 706 (1911)
- State ex rel. Cnty. Ct. v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965)
- State ex rel. Warner v. Jefferson Cnty. Comm'n, 198 W. Va. 667, 482 S.E.2d 652 (1996)
- W. Va. Health Care Cost Rev. Auth. v. Boone Mem'l Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996)
- Wheeling Park Comm'n v. Dalton, 237 W. Va. 275, 787 S.E.2d 546 (2016)
Source
- Landing page: https://ago.wv.gov/media/17396/download?inline
- Original PDF: https://ago.wv.gov/media/17396/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140
Patrick Morrisey
Attorney General
September 24, 2024
The Honorable D. Luke Furbee
Tyler County Prosecuting Attorney
P.O. Box 125
Middlebourne, WV 26149
Dear Prosecutor Furbee:
You have asked for an Opinion of the Attorney General about the entities that may own
property that a local health department uses. This Opinion is being issued under West Virginia
Code Section 5-3-2, which provides that the Attorney General "may consult with and advise the
several prosecuting attorneys in matters relating to the official duties of their office." When this
Opinion relies on facts, it depends solely on the factual assertions in your correspondence and
discussions with the Office of the Attorney General.
You explain that Wetzel County and Tyler County have a joint health department overseen
by a combined local board of health for the two counties. The health department is housed in
leased property that no longer adequately serves its needs. Thus, the combined local board of
health seeks to acquire new property and construct a new facility for the health department.
You raise the following legal questions:
(1) May a combined local board of health acquire and hold title to real property?
(2) If a combined local board of health cannot own real property, must a county commission own it?
(3) If the Wetzel County and Tyler County Commissions jointly invest in property for the health department's use, may the commissions own the property together, regardless of the property's location?
We conclude that a local board of health may acquire property and construct public health
facilities on it. Thus, the county commission is not required to purchase the property. Still, should
they decide to do so, the Wetzel County and Tyler County Commissions have the power to
purchase property for the department's use.
DISCUSSION
I. The Wetzel-Tyler Local Board Of Health May Acquire Property And Construct Public-Health Facilities.
West Virginia Code § 16-2-11 describes the powers and duties of local boards of health.
It applies to "all local boards of health," id. § 16-2-1, including "[c]ombined local board[s] of
health," id. § 16-2-2, like the Wetzel-Tyler local board of health. See also id. (defining "local
board of health" to include "a board of health serving one or more counties or one or more
municipalities or a combination thereof"). And where a local board of health is acting within its
enumerated powers and duties, courts will "not ordinarily interfere" unless there is a "clear
showing of fraud, collusion or palpable abuse of discretion." Bane v. Bd. of Educ. of Monongalia
Cnty., 178 W. Va. 749, 755, 364 S.E.2d 540, 546 (1987).
Among their duties, local boards of health "shall ... [p]rovide equipment and facilities for
the local health department." W. Va. Code § 16-2-11(a)(2) (emphasis added). This power is not a
discretionary one, either; by using the word "shall," the statute requires the local board of health
to provide facilities for the health department. See State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d
87, 96 (1999). To execute this duty, local boards of health can use any "money or property" they
receive for the "establishment or construction of public health facilities." W. Va. Code § 16-2-11(b)(4).
The statute's authorization to provide, establish, and construct facilities likely expressly
allows the board to acquire property. For instance, although the Supreme Court of Appeals has
never been asked to define "provide" in this context, at least one other court has held that "[t]he
power to provide includes the power to purchase." Dancy v. Davidson, 183 S.W.2d 195, 198 (Tex.
Civ. App. 1944). Similarly, the West Virginia Code does not define "construct," but other state
legislatures using it in similar provisions have said it "means all activities necessary or incidental"
to construction, "including ... acquisition of property or any interest therein." Cal. Govt. Code
§ 54700.4; see also United States v. Threlkeld, 72 F.2d 464, 466 (10th Cir. 1934).
But even if the power to provide, establish, and construct did not cover purchasing property,
those powers necessarily imply authority to purchase property. Indeed, "every power necessary to
the execution of an express power is plainly implied." State ex rel. Post v. Bd. of Educ. of
Clarksburg Sch. Dist., 71 W. Va. 52, 54, 76 S.E. 127, 128 (1912). And it would be nearly
impossible for a local board of health to provide, establish, or construct a facility if it could not
own property to do so. Thus, "[t]he implied power to acquire the ground is as plainly given as the
express power to erect the buildings." Id.; see also Herald v. Bd. of Educ., 65 W. Va. 765, 771,
65 S.E. 102, 105 (1909).
Thus, we conclude the Wetzel-Tyler local board of health has the authority to acquire real
property and to construct a new public health facility for the Wetzel-Tyler Health Department.
II. Ownership By A County Commission Is Not Required.
Because the Wetzel-Tyler local board of health may own real property, your second
question is effectively moot. A county commission need not own the property for the health
department's use.
III. The Wetzel County And Tyler County Commissions May Jointly Own Property Within Either Of Their Counties.
Though ownership by a county commission is not required, we still address your question
about whether county commissions can jointly own property located in one county. This question
touches on three separate issues: (1) a county commission's powers to acquire property for a local
board of health; (2) whether two county commissions may jointly own that property; and (3) where
such property may be located. We address each issue in turn.
First, county commissions are "created by statute, and possessed only of such powers as
are expressly conferred by the Constitution and legislature, together with such as are reasonably
and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. pt.
1, State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992).
And when a county commission is acting according to its expressly granted authority, it enjoys
"wide discretion." Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 469, 720
S.E.2d 587, 592 (2011).
The county commissions' express powers include the ability to purchase property or build
facilities like you describe. County commissions "may, by purchase or otherwise, acquire as much
land as may be requisite or desirable for county purposes." W. Va. Code § 7-3-2. And they may
"suitably enclose, improve and embellish the lands so acquired." Id. Similarly, county
commissions may "acquire" and "convey real estate" through "a contract, or lease, or with any
bank or financial institution, or with any individual or persons for the erection, construction,
equipment, leasing and renting of ... public buildings." Id. § 7-3-5. County commissions are also
"authorized and empowered to acquire real estate for, construct, equip, furnish and maintain" any
"public buildings." Id. § 7-3-7.
County commissions' powers to acquire and improve property must be "liberally
construed," making them even broader than they already appear. W. Va. Code § 7-3-12. Put it all
together and, in the words of the Supreme Court of Appeals, county commissions have
"discretion ... without limitation" in purchasing and improving property. Keatley v. Summers Cnty.
Ct., 70 W. Va. 267, 270, 73 S.E. 706, 708 (1911). Given that, their express powers almost surely
encompass the right to purchase property for a local health board's benefit. See W. Va. Code § 16-2-14
(granting county commissions the power to "appropriate and spend money ... for public
health purposes and to pay the expenses of the operation of the local board of health services and
facilities").
But even without these express real estate powers, we conclude that the county
commissions' implied powers would entail the ability to buy property and build facilities for the
health department. The Legislature tasked county commissions with "creat[ing], establish[ing]
and maintain[ing] a county board of health." W. Va. Code § 16-2-3. To achieve that directive,
county commissions may take actions that are "reasonably necessary to perform that function."
State ex rel. Cnty. Ct. v. Arthur, 150 W. Va. 293, 297, 145 S.E.2d 34, 37 (1965). Creating,
establishing, and maintaining a county board of health requires a building to put them in.
Additionally, West Virginia Code § 16-2-14 requires county commissions to "provide financial
support for the operation of the local health department." Altogether, the "symbiosis" between
county commissions and local health departments, including an explicit "financial tether,"
implies that a county commission would be authorized to buy property or build facilities for a
health department. State ex rel. Warner v. Jefferson Cnty. Comm'n, 198 W. Va. 667, 673, 482
S.E.2d 652, 658 (1996).
Second, county commissions may exercise any powers they possess jointly with another
county commission. This power is described several times throughout the West Virginia Code.
For instance, West Virginia Code § 7-1-3i says that "[a]ny county commission may join together
in the exercise of any of its powers ... with any other county or counties ... in carrying out any
lawful purpose not in conflict" with West Virginia's constitution. Similarly, West Virginia
Code § 8-23-3 empowers county commissions to exercise "any power or powers ... jointly with
any other public agency which could likewise act alone." And as to joint property ownership,
West Virginia Code § 8-23-3 contemplates that county commissions may "acquir[e], hold[] and
dispos[e] of real and personal property" to be "used in [a] joint or cooperative undertaking."
These statutes are clear and so should be read "according to [their] unvarnished meaning."
Syl. pt. 3, W. Va. Health Care Cost Rev. Auth. v. Boone Mem'l Hosp., 196 W. Va. 326, 472 S.E.2d
411 (1996). Their plain texts empower county commissions to jointly operate in any manner a
county commission could by itself, including acquiring property and constructing facilities. See
Wheeling Park Comm'n v. Dalton, 237 W. Va. 275, 282, 787 S.E.2d 546, 553 (2016). Thus, the
Wetzel County and Tyler County Commissions may jointly purchase, hold, and improve property
for the benefit of their combined health department.
Third, we understand your question about the property's location to be asking whether
ownership may be shared if the property is within either Wetzel County or Tyler County. Because
county commissions have the power to acquire real estate within their county, that power, like
any of their other powers, can be jointly exercised with another county commission. See W. Va.
Code §§ 7-1-3i, 8-23-3. And we are not aware of any limitation on the commissions' powers of
ownership that would apply in circumstances like these. As a result, the Wetzel County and Tyler
County Commissions may share ownership of property for their combined health department
within either of their respective counties.
Finally, if the Wetzel County and Tyler County Commissions enter into an
intergovernmental agreement to purchase property or construct facilities, any such agreement
would require an "[a]ppropriate action by ordinance, resolution or otherwise pursuant to [the] law
of the governing bodies of the participating public agencies." W. Va. Code § 8-23-3. And if a
new legal entity results from the intergovernmental agreement, the agreement must follow
statutory requirements, such as specifying its purpose, duration, and the entity's composition. Id.
§§ 8-23-3 to -4.
Sincerely,
Patrick Morrisey
West Virginia Attorney General
Michael R. Williams
Solicitor General
Caleb A. Seckman
Assistant Solicitor General